IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

NATIONAL ELECTRICAL 

BENEFIT FUND,

Plaintiff,

Civil Action 2:10-mc-00018

v.

ACJ ELECTRIC, INC.,

Defendant.

ORDER

This matter is before the court for consideration of the

September 28, 2011, report and recommendation (Doc. 29) of United

States Magistrate Judge Elizabeth A. Preston Deavers, to whom this

case was referred pursuant to 28 U.S.C. § 636(b). The magistrate

judge recommended that the court enter judgment in favor of

plaintiff in the amount of $60,266.61 plus reasonable attorneys’

fees and that plaintiff’s motion for contempt (Doc. 5) be granted. 

The report and recommendation specifically states that the

failure to object to the report and recommendation within fourteen

days of the report results in a “waiver of the right to de novo

review . . . by the District Judge and waiver of the right to

appeal the judgment of the District Court.” Report and

Recommendation, p. 9. The time period for filing objections to the

report and recommendation has expired, and no objections have been

filed to the report and recommendation. 

The court has reviewed the report and recommendation. In its

motion requesting that the court hold defendant in contempt,

plaintiff also requested that the court hold defendant’s president,

Glenn H. Kesselring, and defendant’s vice president, William J.

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Smith, in contempt, citing Electrical Workers Penson Trust Fund of

Local Union #58 v. Gary’s Electrical Serv. Co., 340 F.3d 373 (6th

Cir. 2003). The record demonstrates that Mr. Kesselring received

notice of the proceedings in this case, that he attended the

contempt hearing presided over by the magistrate judge on March 22,

2011, and that he received the report and recommendation. However,

the record is silent as to whether Mr. Smith ever received notice

of any of the proceedings or orders in this case, or whether he

received the report and recommendation.

The court adopts the report and recommendation except insofar

as it recommends the imposition of contempt sanctions on Mr. Smith. 

Plaintiff’s motion for contempt (Doc. 5) is granted in part and

denied in part.

The court directs the clerk to enter judgment in favor of

plaintiff National Electrical Benefit Fund and against defendant

ACJ Electric, Inc., in the amount of $60,266.61, plus reasonable

attorneys’ fees in an amount to be later determined by the court. 

Plaintiff shall file a supplemental memorandum in support of its

motion for attorneys’ fees (Doc. 15) within fourteen days of the

date of this order. If defendant opposes plaintiff’s supplemental

memorandum, it must file its memorandum in opposition within

fourteen days of the date plaintiff files the supplemental

memorandum.

The court further finds that defendant and Glenn H. Kesselring

are in civil contempt due to their failure to comply with the

orders of this court and of the United States District Court for

the District of Maryland. The court imposes a fine in the amount

of $60,266.61, payable to plaintiff, as a sanction for their

contempt. The fine obligation is joint and several. Defendant and

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Mr. Kesselring can purge themselves of contempt by submitting

payment to plaintiff in the amount of $60,266.61 in satisfaction of

the judgment and reimbursing plaintiff for the reasonable

attorneys’ fees in an amount to be determined by this court. 

IT IS SO ORDERED.

Date: October 19, 2011 s/James L. Graham 

 James L. Graham

 United States District Judge

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